Coolen v. Group Health Cooperative
| Decision Date | 18 August 2020 |
| Docket Number | 52586-1-II |
| Parties | PHYLLIS COOLEN, as personal representative of the estate of PATRICK COOLEN, and individually as surviving spouse, Appellant, v. GROUP HEALTH COOPERATIVE, a Washington business entity doing business in Thurston County, Respondent, GROUP HEALTH OPTIONS, INC., a for profit Washington corporation doing business in Thurston County;GROUP HEALTH OF WASHINGTON, a Washington business entity doing business in Thurston County; JOHN AND/OR JANE DOES 1-3, providers of health care services in Thurston County; and BUSINESS ENTITIES 1-3, providers of health care services in Thurston County, jointly and severally, Defendants. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Patrick Coolen, a patient at Group Health Cooperative, died of prostate cancer in 2016. His wife, Phyllis Coolen, sued Group Health on behalf of herself and Patrick's estate. Phyllis[1] appeals the trial court's decisions effectively removing from the jury's consideration her claims based on corporate negligence and informed consent.
Phyllis argues that the trial court erred by not instructing the jury that Group Health had a duty to adopt policies and procedures for prostate cancer screening, by not instructing the jury that Group Health had a duty to monitor and review its providers, and by granting Group Health's motion in limine removing her breach of informed consent/shared decision-making claim from the jury's consideration. Phyllis requests attorney fees on appeal.
We affirm. The trial court was not required to instruct the jury on the duty to adopt policies and procedures because Group Health did not have a duty to adopt specific policies and procedures for particular methods of screening illnesses. The trial court was also not required to instruct the jury on the duty to monitor and review claim because substantial evidence did not support that claim. We affirm the trial court's decision to grant Group Health's motion in limine effectively removing Phyllis's informed consent/shared decision-making claim from the jury's consideration because, absent particular facts not applicable here, a plaintiff may not bring an informed consent claim in a misdiagnosis case. We deny Phyllis's request for attorney fees.
Patrick was a patient at Group Health between 2003 and 2014. Dr Jennifer Williams, a family practice physician, was Patrick's primary care physician.
In January 2003, Patrick had a routine well-adult visit with Dr Williams. Because Patrick was a 54-year-old male, he received paperwork that included a question asking whether he wanted written information about prostate cancer screening. Patrick checked the '"yes"' box and Dr. Williams wrote '"done"' next to that section on the form. Verbatim Report of Proceedings (VRP) (Sept. 19, 2018) at 852. She did not specifically remember her conversation with Patrick, but testified that she would normally give the patient a brochure about prostate cancer screening and might also have a conversation about it.
There are two ways to screen for prostate cancer. One is a physical prostate examination called a digital rectal examination (DRE). The other is a prostate specific antigen (PSA) test. The PSA test involves drawing blood to check for elevated PSA levels, which can indicate the presence of prostate cancer but can also be caused by benign inflammation or enlargement of the prostate. If PSA levels are elevated, providers typically biopsy the prostate to determine whether the elevated PSA levels are caused by prostate cancer.
In September 2006, Patrick had another well-adult visit with Dr Williams. They discussed prostate cancer screening and the risks and benefits of both tests, including that the PSA test is associated with false positives, which can result in overtreatment. According to Dr. Williams's chart notes, Patrick understood '"the limitations of this screening test and wishe[d] not to proceed with prostate cancer screening.'" VRP (Sept. 19, 2018) at 856-57.
In March 2009, Patrick had a well-adult visit with Randy Weiler, a physician assistant with Group Health. Weiler discussed prostate cancer, the screening controversies, and prostate cancer outcomes. Weiler's chart notes did not indicate whether Patrick declined the PSA test, but Weiler testified he was sure Patrick declined it, because if Patrick had not declined the PSA test, he would have ordered it. Weiler did perform a DRE, finding a normal prostate.
In September 2010, Patrick saw Laurie Rogers, a Group Health physician assistant, for an acute visit. Patrick complained of urinary issues and discomfort. Rogers performed a DRE to check for prostate cancer. Rogers's chart notes indicate that Patrick's "prostate [was] enlarged, symmetrical, smooth, elastic, [and] nontender." VRP (Sept. 20, 2018) at 976. Although Patrick's prostate was enlarged, Rogers did not think he had prostate cancer.
Rogers developed a working diagnosis of benign prostate hypertrophy (BPH). Both BPH and urinary issues are very common in men over 50 years old, and about half of men at age 61 have BPH. Rogers did not place her BPH diagnosis on Patrick's "problem list," an electronic record of chronic diagnoses kept for continuity of care. VRP (Sept. 13, 2018) at 252-53. Rogers ordered tests to rule out sexually transmitted infections and they were negative. Rogers instructed Patrick to return for follow up if his symptoms persisted or worsened.
Phyllis's expert, Dr. Peter Bretan, testified that a PSA test would have been appropriate at this time to rule out prostate cancer. But he also acknowledged that according to American Urological Association guidance, if a patient did not continue to have BPH symptoms over time, further testing was unnecessary.
Patrick saw Group Health providers for unrelated issues several times over the next two years but did not mention ongoing prostate problems. In May 2012, Patrick had a routine colonoscopy, and he indicated at that appointment that he was not experiencing urinary issues or pain.
In April 2013, Patrick saw Dr. Williams for an acute visit. He complained of testicular and scrotal pain. Dr. Williams diagnosed him with epididymitis (testicular irritation). He did not have low back pain. Dr. Williams testified that testicular pain was not a symptom of prostate cancer. Dr. Williams also ordered a urinalysis and noted that Patrick had a scant amount of blood in his urine. Dr. Williams did not think that this was a sign of prostate cancer, in part because Patrick was on blood thinners that could cause blood in his urine.
In March 2014, Patrick saw Dr. Rebecca Brandt, also a Group Health physician, for an acute visit. He complained of urinary problems. Dr. Brandt performed a DRE, which revealed an enlarged, nontender prostate. Dr. Brandt again diagnosed Patrick with BPH and dysuria and suggested a urology referral. Patrick and Phyllis were about to move to Hawaii, and he planned to follow up with the urology referral once he arrived in Hawaii.
In June 2014, Patrick established a new primary care relationship with a Kaiser Permanente doctor in Hawaii. Patrick had low back pain, a fever, and was losing weight. The Kaiser doctor ordered a PSA test and prostate biopsy. The PSA test and biopsy revealed high-grade, high-volume malignancy. Patrick and Phyllis moved back to Washington where he received chemotherapy and experimental cancer treatments. However, Patrick's cancer was advanced and metastatic, and he died in June 2016, at 66 years old.
Phyllis sued Group Health in her individual capacity and as the personal representative of Patrick's estate. Her complaint included claims for negligent failure to diagnose under RCW 7.70.040 and failure to obtain informed consent or engage in shared decision-making under RCW 7.70.050.[2] Phyllis sued Group Health under a vicarious liability theory for the negligence of its employees. Phyllis's complaint also included claims for corporate negligence. Phyllis asserted that Group Health breached duties it owed to Patrick to monitor and review its providers and to adopt policies and procedures for prostate cancer screening.
Group Health filed a pretrial motion to exclude Phyllis from presenting evidence, arguing, or submitting jury instructions about her lack of informed consent claim. The trial court granted Group Health's motion, finding that Phyllis's case was a negligent failure to diagnose case and agreeing with Group Health that under Washington law, a failure to diagnose case generally cannot also support a failure to obtain informed consent claim.
After the plaintiffs case in chief, Group Health moved for judgment as a matter of law on Phyllis's corporate negligence claims. The trial court denied Group Health's motion at that time, concluding that substantial evidence supported Phyllis's corporate negligence claims.
Both parties presented expert testimony on the issue of when the standard of care required a provider to recommend and perform a PSA test. Experts on both sides agreed that prostate cancer often develops slowly and is often not fatal. They also agreed that PSA testing has both risks and benefits because it can lead to overdiagnosis and cause men to seek treatment that is not medically necessary. Testimony at trial revealed that as of 2013, most medical associations, including the American Urological Association, to which both Phyllis's and Group Health's expert witnesses belonged, did not recommend routine PSA testing, but recommended instead that providers engage in shared decision-making with their patients about the risks and benefits of PSA tests.
The parties' experts disagreed about when, if ever Patrick's prostate cancer could have been both detectable and curable. Dr....
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